A man working as a school attendant alleged employment discrimination based on prohibited discriminatory grounds in a case where he was denied a promotion to custodian. He alleged it was due to problems with his English language skills.

The man is employed as an attendant by the Peel District School Board in Ontario. An attendant mainly performs cleaning duties in schools but at a lower level than a custodian. He wanted to become a custodian but in order to qualify, he had to pass a written test and a training course.

He failed the written test the first time around in 2008, and was told that his English skills were not up to par. He was told he needed a “Level 7 certificate” English as Second Language proficiency but he only had “Level 4”. However, there was no specified language skill requirement for the job.

In 2010, he was allowed to take the test again after he had complained to his union. He passed and then started the training course but failed the course test.

He then called the test administrator, who invited him to review the test with him to improve his chances but the man declined. He was denied a retake of the test because he didn’t bother to review the test, and filed complaints against the board. He alleged that the board “imposed arbitrary English proficiency standards” on him.

After the complaints were filed, the board allowed him to rewrite the test in order to settle the issue but he didn’t show up to any of the dates for which he was scheduled and instead followed through with his complaints to the tribunal.

The tribunal found that “English proficiency is not an [Ontario Human Rights] Code-protected ground.” Employers have the right to require that their prospective employees have a certain level of English skills.

The test required a certain level of English literacy and comprehension, without which someone couldn’t qualify to become a custodian. If his English proficiency was indeed a factor in him failing, then “improved English proficiency was legitimately needed so that the applicant could pass the test.”